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NAVY | DRB | 2004_Navy | ND04-01465
Original file (ND04-01465.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT

ex-ABFAR, USN
Docket No. ND04-01465

Applicant’s Request
The application for discharge review was received on 20040921. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293. Subsequent to submitting the application, the Applicant obtained representation from the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050304. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “I took responsibility for my actions and deeply regret the Horrible decisions that I made in the past. Based on my service record I was a 4.0 sailor who proudly served my country. The numerous commendations and medals shows my dedication to duty and the Naval Service. From combat action in Desert Storm to voluntarily extending my enlistment to be deployed in Operation Restore Hope in Somalia. I ask the Board to consider my service and service record in deciding on my upgrade request.”

 Additional issues submitted by the Applicant’s representative (Veterans of Foreign Wars):

2. “ Propriety or Equity Issue(s): The applicant faithfully served his nation for more than 6 years and his misconduct was a manifestation of stress incurred during Operation Desert Storm and should have been treated as a disease rather than a breach of order.
Statement: In accordance with 32 CFR § 724, and SECNAVINST 5420.174D, the Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition.

 The applicant had served his nation for more than 5 years, including duty in the Persian Gulf during Operation Desert Storm, before he ran afoul of the law and developed anger management issues. His anger is likely the effect of Post Traumatic Stress Disorder and as such should have been treated as a mental disability rather than a behavioral defect. The applicant requests that his discharge be upgraded to more accurately reflect his honorable period of service.
The Veterans of Foreign Wars’ express purpose in providing this statement and any other submittals or evidence filed is to assist this applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 USC § 1553, and set forth in 32 CFR § 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”






 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter from Applicant dated August 27, 2004
Eight pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890815 - 891031  COG
         Active: USN                        891101 - 940312  HON

 Period of Service Under Review :
Date of Enlistment: 940313               Date of Discharge: 960430

 Length of Service (years, months, days):

         Active: 02 01 18 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 12                        AFQT: 45

 Highest Rate: ABF3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB*                 Behavior: NOB             OTA: NOB

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, NUC, CAR, SASM (w/B*), SSDR (3x), KLM, BER, AFEM

 Days of Unauthorized Absence: 120

*Service record reports no marks obtained during this enlistment

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

950809:  NJP for violation of UCMJ, Article 128 (2 specs): (1) Unlawfully struck wife and (2) pulled her by her clothing about the floor until forcibly restrained on 950712; violation of UCMJ, Article 116: Caused breach of peace by engaging in an assault and using provoking words to Savon store employees on 950712; violation of UCMJ, Article 107: Made false statement to ABH2 G_ on 950712; violation of UCMJ, Article 92: Disobeyed lawful order from YNCM H_; violation of UCMJ, Article 86: UA from 1100-1900, 950808.
         Award: Forfeiture of $500 per month for 2 months, restriction and extra duty for 45 days, reduction to ABFAN (reduction suspended for 6 months). No indication of appeal in the record.
950817:  Vacate suspended punishment from NJP dated 950809.

951215:  To pre-trial confinement.
        
960311:  Special Court-Martial.
         Charge I. Violation of UCMJ, Article 86 (2 specs).
 Specification 1: UA from 0800, 950819 until apprehended and returned to military control on 951215.
Specification 2: UA from 2200, 950816 until apprehended at 0040, 950819.
Charge II. Violation of UCMJ, Article 128.
Specification: Assault his wife.
Charge III. Violation of UCMJ, Article 112a.
Specification: Wrongfully use marijuana on 950819.
Findings: Guilty to all charges and specifications.
Sentence: Forfeiture of $500 for 4 months, confinement for 4 months, reduction to E-1
CA action: 960329. Approved and ordered executed.
960323:  From confinement, to TPU.

 960408:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
960408:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
960408:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and due to the commission of a serious offense. Applicant declined Level III rehabilitation treatment.

960418:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960430 under other than honorable conditions for misconduct due to commission of a serious offense (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Issue 1. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) and a special court-martial for three specifications of assault, breaching the peace, a false official statement, disobedience of orders, three periods of unauthorized absence, and illegal drug use. The Applicant’s assaults, breaching the peace, false official statement, disobedience of orders, period of unauthorized absence beyond 30 days, and illegal drug use are considered serious offenses under the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable or under honorable (general) characterization of service. An upgrade is inappropriate. Relief denied.

 Issue 2. The Board found no indication from the available records and the documentation submitted that his misconduct was caused by stress incurred from combat or a medical condition. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.
The Applicant’s discharge characterization accurately reflects his service to his country for the enlistment under review. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety is evident during the Applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge. Representation at a personal appearance hearing is recommended but not required.



Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil” .

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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